1. We are sending more troops to Afghanistan. Very convenient timing. Remind people of the TERRORISTS and how much we need to ensure SECURITY when they start complaining about land rights and asylum legislation, and of course interest rates and oil prices. Which leads me to:

2. Despite the recent rate hike (and I mean the first one, not the one the other day), debt levels and housing loan numbers are going up. Alarmingly, the number of loans for investment properties went up 4.5%. People, people, people, DON’T complain about rising oil prices and interest rates if you are going to keep borrowing at the same time. Investment is not a necessity, the whole point of rate rises is to make you think ‘Hmm, maybe I won’t spend this money’. It is not about a bunch of nasty men in suits making you spend an extra .25% when you buy that investment property you ‘simply must have’.

Basically, as soon as people stop spending so much money, interest rates will stop going up.

Well, yeah. I am not surprised that this was dealt with by summary judgment (albeit 49 pages. 49 page summary judgment? Sheesh). My mother even knows that facts are not copyright. It is the way one reduces those facts to material form that becomes the copyright material.

So here is my question – do fantasy league owners use stats generated by the MLB and published by them? If they do, surely that is infringement. If, for example, I run a little basketball fantasy league between my friends, charge them $10 each to enter and get the stats from nba.com, that much be infringement. Only if I compile the stats myself am I not reusing the expression of another.

However, some quick observations. Backbenchers are not taking the moral high ground? No, they are ‘looking at us from the ditch’. Get real, Mr. Thompson.

Good on Petro. If you are going to spend 10 years in Parliament doing nothing, this is as good a law as you could get to stand up against.

Good on you Barny. Instead of dismissing backbench protests, Uncle Barnaby is prepared to listen. He says ‘I think the people who advocate the position for greater breadth in the asylum laws are not moral bankrupts, nor are they stupid people…I think they have a valid position and you should give them the dignity of listening to them.”

Well, yeah. Newsflash, John Winston. If you try and pass crap, badly thought out, morally bankrupt laws which flout your international obligations, without listening to protest from within your party, you get floor-crossers. This is not a case of a few people holding the party hostage. It is a case of not taking into account the view of the party room in a democratic way. They keep saying what they are saying; their position is not new.

Migration laws in this country are about as tight as they ever need to be. It is not as if the country is baying for more restrictions on migrants. So, the latest backbench revolt cannot even be quelled by the argument that these laws are politically expedient. My argument would be that the tighter the law gets, the more angry the electorate is getting.

“[P]erhaps it’s time to turn the spotlight the other way, and look at the 120-odd Coalition MPs and senators who are going to vote for the legislation. Instead of asking “why are there dissidents?”, we should be asking “why are there so few of them?”.

After all, this legislation proposes to tear up Australia’s international obligations more comprehensively than anything that was done in the immediate post-Tampa period. And at that time the government had the excuse of a number of refugee boats arriving in a short period, plus desperate political imperatives at home.

Now it has neither. Moreover, the legislation was transparently drafted in response to Indonesian pressure – normally not a vote-winner in either the party room or the electorate.”

I have missed the High Court handing down five decisions recently, although when I read the catchwords I am not sure if I have missed very much. When freezing orders to confiscate property can be made, when a limitations period begins to run in the context of post-traumatic stress disorder, apprehended bias of a judge, allowed tax deductions for CityLink, whether an indictment was a nullity because a count was wrongly included and a miscarriage of justice after a badly worded jury direction.

Granted, there was an extradition case which looks quite interesting, but these cases in general just don’t get me excited. They seem to be niche cases, there is very little ground shifting going on. No Mabo or Walton Stores. Now, granted, these cases don’t come around very often, and I’m not reading as many cases as I should, but have any REALLY big cases been decided this year? Or is it just this ho-hum stuff about, well, not much?

I read somewhere a little while ago that Australian authority is being relied on less and less in other common law jurisdictions than it was in the days of, say, the Mason or Barwick courts. Is this because the High Court is deciding less important cases? I am really interested in people’s view of this so please pipe up!

The EU administration has firmly rejected the possibility any such discussion. Why are we still having this tired old debate? The death penalty does not satisfy the main aims of penal theory. It does not rehabilitate (for obvious reasons). It does not deter (or else the US wouldn’t need to keep injecting people with lethal drugs). Apart from anything else, it is so scary to live somewhere where the state has the ability, historically used arbitrarially, to kill people. How can a State tell people not to kill, when the same State kills people itself? It just doesn’t make sense.

I liked the caption – ‘Lech Kaczynski advocates traditional Catholic values’. The Beeb is not noted for its irony, so I can only guess it is unintended, but it is dripping with irony. When will some Catholics realise that ‘traditional values’ do not mean killing people? They mean ‘love thy neighbour’, ‘turn the other cheek’ and ‘do unto others as you would have them do unto you’. Forgiveness is possibly the word I heard most in my childhood, yet people touting these ‘traditional values’ say in the same breath that State sponsored killing should be REintroduced.

August 3, 2006

I know virtually nothing about the current conflict, apart from the fact it is happening. However, the question that strikes me first is the following:

How can we, as an international community, stand by and let the US support the actions of a country that makes no attempt to prevent civilian casualties in such a conflict?

That is, whilst the US is the most powerful country in the world, surely the rest of the world has enough guts to say ‘Look, you can’t support a regime that bombs and kills children whilst pretending they are seeking military targets’.

June 30, 2006

I am going to put this post up before I go so that it will stay on top for the 5 weeks I am gone. Warning, this is a rant.

The world woke today to the news that the US Military Commissions the American governments was going to use to try ‘illegal combatants’ are illegal. Thank goodness.

I wasn’t even going to blog this, because the coverage is so much more insightful and useful elsewhere (see Opinio Juris and SCOTUS Blog eg), but what really pisses me off is our government’s reaction.

David Hicks MUST BE TRIED NO MATTER WHAT. He has been held without trial for four years now. When are they going to GET ON WITH IT? The treatment of David Hicks by the US Government and our own government’s pathetic response quite astounds me. They should be demanding a trial now, or else a return of David Hicks to Australia so he can be tried by us. Or send him to the ICC or SOMETHING, but GET ON WITH IT. If he is guilty, so be it, lock him up. If not, he should be on the first plane home, a free man.

Yes, we go nuts trying to get prisoner exchange agreements for poor Schapelle Corby and the Bali Nine, but we won’t go into bat for a bloke who has been taken out of the jurisdiction in which he was found, placed in detention in conditions likened to a Soviet gulag, and left by our government to rot, despite the fact that other allies have demanded their nationals be returned to their jurisdiction. Saudis and Yemenis have been allowed home, but not Australians.

Why? Our government is more worried about posturing and pandering than the rule of law. And when governments ditch the rule of law, mark my words, bad things happen. Like torture, like people being held incommunicado, like interrogation without the presence of lawyers.

Short of the genocide, kind of sounds like Iraq under Saddam Hussein, really.

I’m going to go out on a limb and say THAT penalty WAS a penalty, but what a great game of football it was last night.

Really, teams shouldn’t complain when they are 11-10, they shouldn’t put themselves in a position where one good or bad refereeing decision makes or breaks the game. It was a simple story of the fortress-like Italian defence meaning we couldn’t get enough dangerous shots on goal.

Whilst the Socceroos utterly did Australia proud, one has to ask themselves – ‘can you remember Buffon making any great saves?’ I can’t, which means there simply wasn’t enough pressure put on the Italian goal. Until the send off, Italy were all over us and, really, should have been up at least 1 or 2-0 at haf time.

June 26, 2006

Every now and then a case comes along that makes one really laugh. Remember Darren Ray? For those of you who have been at uni for a few years, he was the guy who got elected to the Student Union by giving us all $8 vouchers to spend at the UBar in return for voting.

Anyway, he was supposedly one of the driving forces behind the spectacular collapse of the Melbourne Uni Student Union (the other guy was called Scott something, and tried to get elected to a City Council recently. Brimbank maybe?).

The injunction wasn't granted, so Cass can still publish whatever he likes about the liquidator's conduct in the proceedings. I'm going to be straight with you, I'm not going to read the whole judgment.

You can, if you like, because from the overview that I took, it seems an interesting case in the evolution in this country of liability for work published in blogs.

Basically, emails were sent describing the nature of the Applicant's buckets, as well as a short discussion about how the Respondent's were better because they had taken the features of two of the market leaders and made their own. They didn't want to discover this document (hmmm, wonder why) and so said it was not relevant.

The relevance argument was based on the fact that the Court would determine objective similarity when deciding whether copyright had been infringed.

Greenwood J held it was an essential part of determining objective similarity that emails discussing the early conceptions of the product were examined. He held the documents were relevant because they detailed how the product came into existence, which can be taken into account when determining objective similarity.

The Respondent also complained they had a dodgy IT system, which could not search emails properly, and they had 711,000 emails they might need to read.

This would be great news. I argued in an essay that the agreements were illegal at international law, on three grounds, two relatively weak and one I believed quite strong. The weak grounds were that the agreements defeat the object and purpose of the statute, which is a weak argument because this ground of objection ceases to have effect once a country ratifies the treaty. Therefore, the more countries ratify, the less countries there are for this doctrine to operate between.

The other weak ground was that of universal jurisdiction, which is the idea that the ICC has universal jurisdiction over the crimes prosecuted under the Rome Statute, assuming their status as jus cogens offences at international law. I hope that this argument becomes stronger in future, because I firmly agree with Geoffrey Robertson's argument that no rogue leader will think twice about committing war crimes until there is a credible threat of their prosecution.

The strongest argument for the illegality was that an interpretation of Article 98 which allowed these agreements to be in force was not the intended interpretation of the treaty signatories. In effect, States are prohibited from acting in a way not contemplated by the drafters of the treaty, and I did not believe that agreements which allowed a State to circumvent the entire operation of the court were intended to be legal under the Rome Statute.

All this is nice in theory, but unless the US supports the ICC and allows its nationals to be prosecuted along with all others, it will lack legitimacy. I have noted this week the coming trial of Charles Taylor, which is great. However, whether these agreements are illegal or not, the US will use them and abide by them, and force others to also, until they decide not to.

This, of course, is the problem of powerful states in areas of international law in which they do not wish to be bound. A visionary US would realise that its interests are best served by having a legitimate international court in which to try alleged war criminals, rather than the kangaroo courts they have set up domestically.

Maybe he is going to have a tilt at the UN Secretary General's position after all? FWIW, having heard the man speak a few times, he is intelligent and deeply caring about the problems of the world. I think he would make an excellent head of the UN.

June 23, 2006

With previously unseen hilarity, Stephen Fielding has started to make automated phone calls, because politicians are exempt from the legislation. His opposition to such an exemption is well noted (here eg) and, although I can't find the link now, his phone call goes something like: 'This is Stephen Fielding and I am calling you because I can, because politicians are exempt from the new Do Not Call Register'.

June 22, 2006

I got up from the couch to write this post, because I was so shocked and amazed at the behaviour of some Parliamentarians today.

Mal Brough, the Indigenous Affairs Minister, was discussing in Parliament the coming national summit on Aboriginal welfare, in light of the shocking allegations of abuse, specifically the trading of petrol for sex, in some communities.

Can somebody tell me who the clowns sitting on the backbenches were? Two gits who probably have no idea what of the problems the Minister was discussing were sitting there giggling to each other like schoolkids. Who were they?

I see this kind of inquiry as the a constantly recurring one that, really, doesn't make much difference to anything. Forgive me, but we can have discussions about maturity and capacity to make decisions until the cows come home. We could make the voting age 12 and there would be little difference. We are all vulnerable to political incentives, whether 12 or 50.

The voting age is one of those laws that just isn't worth the time and effort changing.

Does this mean we trust little kids to make sensible electoral decisions about who is best equipped to run a country, potentially who is best able to prevent terrorist attacks, or who will best protect their parents' prosperity, but we won't let them have a beer in the pub?

June 17, 2006

Some good comments also – don't have too much electronic equipment in your bedroom, for example. I find that creating good associations with your bed works. So, I find that reading a good book in bed creates the association of feeling nice and happy. In turn, I can't read much of a book in bed, even when I am really enjoying it.

If you had cut off your wife's head, don't you think you would be careful not to drive around like a maniac, thereby killing another mother and daughter, and causing your wife's head to bounce around on the road.

I can't understand how tragedies like this could possibly happen. How sick can people be?

June 16, 2006

Yes, it is probably a good idea for the EU to have a constitutional document. Yes, it is probably in the interests of the EU to centralise lots of Executive functions.

However, the lack of explanation being provided, and the seeming lack of connection between the Executive, the European Parliament, and people on the street means that a Constitution will never be passed as the current requirements stand.

In a union of 25 members, who ALL must pass the Constitution, whether in Parliament or by referendum, it takes a hell of a lot of explaining by political leaders before people on the street are willing to concede power over taxes, criminal law and defence policy to some ethereal EU Parliament and even worse, some back-room EU Commission.

The leaders might be all friends, but they need to remember, they are asking Poles to allow Germans to run their defence; ex-Soviet satellites to give up their new found independence and the UK to allow taxes to be raised elsewhere, when they won't even join the Euro.

I'm not a big fan of the complementarity principle, which basically says that if a national government is prosecuting or in the process of investigating war crimes, the ICC can't act.

I have always seen this as the most obvious way a country can block the jurisdiction of the court, by setting up courts to try people domestically which have no real power, or are corrupt, or hand out lenient sentences.

This is especially dangerous where a government is accused of war crimes, as it of course most often is. The leaders of Sudan simply have to 'try' each other to effectively prevent the ICC from acting.

The trial of such an important alleged war criminal is just the type of case the ICC needs to establish itself as a legitimate, competent institution, which can be trusted to establish the guilt or innocence of alleged war criminals.

Such leadership from a country that needs to reestablish its international law credentials after the Iraq debacle can only leave the US, should it fail to support the court, even more in the cold than it already is. Hopefully, the growing strength of the ICC will mean that the rule of law in international affairs might grow in strength alongside the court.

Without a link, recent reports suggest that the US is moving towards a more accepting stance on the ICC, whilst still not accepting the court's jurisdiction over its own soldiers. That's a start.

June 15, 2006

I'm currently working up my notes for Corps Law on Monday. Yes, I know I am late. However, I am helped by the fact that note making is much easier since the Adler case.

Rodney Adler's behaviour provides authority for the behaviour required to breach just about every director's duty there is. When in doubt, stick in Adler as your authority. He is sure to have breached the duty you are examining.

My partner's brother has just been to Sarajevo and showed me the photos of the military cemeterys there. It is quite incredible, and these steps towards healing, as well as independence, as so much more monumental than people realise.

Why, you ask? Well, because there was a wee touch of hooliganism and plenty of fighting when Germany met Poland last night.

Um, can anybody spot the difference? I might be proven wrong, but I imagine a clash of Germans and Poles probably holds more venom than between England and T&T. Only because of a war or two and some occupation, mind you.

I'm fair, I'll give credit where it is due. Mirko Bagaric's piece this week discusses the inequity of global trade through the prism of his lack of bananas.

He is right, there is plenty of everything in the world, we just won't let people sell it. I remember hearing John Ralston Saul speak last year, and he said that global welfare is lacking because of dysfunctional distribution, not the lack of ability to actually produce.

He used the example of socks. The world has so many socks we can buy 200 pairs on eBay for $100. Trust me, I almost did. However, we daily see people in Africa with no socks. The problem is not producing this stuff, it is getting it where it is needed.

Governments provide as many barriers as they can to this distribution process, exactly as Bagaric describes. Why would our government let foreign banana producers gain a toehold in our market, when there are no votes coming in from Ecuador? See, the myth of free trade is that the banana producers sending us stuff for a lower price makes our domestic producers sit up and think – 'gee, I can't compete on bananas anymore, I better make a higher value product than simply pulling something off a tree'.

If we let that happen more, we would probably be much better off. However, most of the time that is not what happens. We protect our domestic producers. Third world countries have a busted economy.

Points to anybody who can jog my memory. Who gives more subsidies to domestic producers than foreign aid? I think I read it was the EU, but it is probably almost every rich nation. Why not scrap the subsidies, get cheap product from overseas, and use the money to train people into better situations? Isn't that how things are meant to work?

Now, apart from the fact we can't even land on the bloody thing, we don't have enough spacesuits to go around to live on the moon.

Seriously though, why can't somebody noted for his intelligence use a speech-making opportunity to tell people global warming is real, that using big cars and power plants makes the world throw us off and actually provide a useful set of discussion points?

Don't tell me that if some people who 'don't believe' heard Stephen Hawking saying it, they wouldn't take it on board.

The applicant asked the court for permission to pass discovered documents to what might be considered a party that was a 'stranger to the action'. Not in this case, where litigation funders have a sufficient interest in the case to be made privy to discovered documents.

I imagine this is an issue of increasing importance, given the presence of litigation funders on the ASX.

I toyed a while ago with the idea of reporting High Court cases as they happened (see the result here) but after discussions with some people it never quite got off the ground.

Does anybody think there is call for immediate discussion of every High Court judgment, as well as significant arguments (ie transcript reporting), or do people find it easier to find information from better sources?

Better still, is anybody interested in actually writing some case notes as the cases are handed down? Does anybody else actually offer this kind of information, other than people like Simon Evans?

I'm going to Europe in a few weeks, so this advice was timely. It is incredible how much junk I can pack if I try. I give in to that urge to throw in the extra jumper and pair of pants, as well as taking about 8 books which I won't read but feel naked without.

To what extent can a person who has been sexually abused by a Catholic priest sue the institution of the church?

See this case in the US, in which it was held the person could sue the Holy See, despite its claims of immunity under the American Foreign Sovereign Immunity Act, because apparently that law has an exception for tortious behaviour.

It might have been interesting to see whether the Court would apply vicarious liability. Is the church an employer? This could mean that the Church would be liable for the tortious acts of 'employees', although the acts would have to have taken place within the normal scope of the employee's employment.

That sexual abuse was part of normal employment duties of priests might seem like the reality, it would be a tough argument to get up on.

At risk of being corrected, such a suit in Australia would have no legal basis. You can't sue someone to force them to do something unless you are seeking a mandatory injunction. Such an injunction requires there be a serious question to be tried, in other words, you need a reasonable cause of action on which to run a trial.

The only serious cause of action I can think of would be something like a tort-based action. However, this would mirror the McDonalds case, in which the plaintiffs were told to get lost. There are simply no grounds on which to bring an action to force somebody to cook food in a way YOU want them to. If you want it cooked differently, here is a tip. Do it yourself.

June 13, 2006

Hilarious as usual, the latest instalment of A Criminal Waste of Space. Now why don't we have a quarterly judicial conduct publication. We could put the performers from the recent Legal Comedy Debate in there.

Apart from reading about judges deciding cases by flipping a coin, read about the judge who consults imaginary mystic dwarfs in his chambers. Hmmm.

However, it is the Special Leave application in the same post that got my attention. Go and read the Hich Court transcript here. Mr. Walker from the other side didn't even need to speak, save for his 'we seek costs, your Honour'. Payday. What would he and his learned junior picked up for that court appearance? $1000 each?

Since Zarah Garde-Wilson is the subject of every second search that drives traffic to my blog, I thought I should write another post about her. People obviously want to know.

Links are somewhere, but she has abandoned her potential appeal against her contempt of court conviction. This in effect means she is trading off her practicing certificate on the chance she would go to jail for a month or so.

That is such a tough call for a person to make. For me, I would probably have a crack. I would figure that my career was that important. I don't think they would have sent her to the big house. If you read Harper J's first instance judgment, he was big on her having been through enough. I think the bench get it.

Here is a question. Would you testify? Would you be scared? Would you be scared enough to trade in your career? These are the decisions people make every day I suppose.

I also guess that one can always find another career, however it is tough to forget going to jail.

UPDATED: This post had a page view within five minutes of being posted. Incredible.

Having put out a lost of posts on WordPress in the last few days, I must say it leaves Blogger in the dust. It has massive functionality advantages, as well as providing the ability to see where visitors come from and what they are viewing. I used to use SiteMeter for that, but there seems little point here.

I have had at least 13 readers per day since I moved, which is much higher than usual. Yes, I was already aware not many people read this, no need to laugh. In any case, WordPress clearly provides better links to Technorati and gets posts out into the blogosphere much better than Google does.

What do people think? Are there any negative experiences to report from WordPress users?